1. Different Types of Threats to Life. When policymakers
consider whether a proposed health and safety regulation is worth its cost, the standard cost-benefit approach is to consider how many lives are actually likely to be saved.254
This approach, which differentiates among risks only in the quantitative terms of their likelihood and magnitude, is widely favored by proponents of CBA.255
Indeed, those proponents treat this approach as a strength precisely because it elevates true dangerousness over public misperceptions thereof.256
Critics of CBA, however, have attacked this approach by pointing out the degree to which it is at odds with people’s actual views of risk and actual preferences toward regulation.257
For example, a CBA analysis by Robert Hahn in 1996 indicated that the number of lives likely to be saved by increased airline security was far too low to justify the expense.258 Of course, this analysis did not foresee the attacks of September 11, 2001, but the more interesting issue surrounds what the analysis would have concluded if it had foreseen those attacks. As Ackerman and Heinzerling note, the
254. ACKERMAN &HEINZERLING,supra note 12, at 130.
255. E.g., STEPHEN BREYER,BREAKING THE VICIOUS CIRCLE:TOWARD EFFECTIVE RISK
REGULATION 61–63(1993);John D. Graham, Making Sense of Risk: An Agenda for Congress,
in RISKS,COSTS, AND LIVES SAVED 183,193–95(Robert W. Hahn ed.,1996);Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51STAN.L.REV.683,753(1999); Neil D. Weinstein, Optimistic Biases About Personal Risks, 245 SCIENCE 1232,1232(1989). 256. See sources cited supra note 255.
257. See generally ACKERMAN &HEINZERLING,supra note 12, at 123–52.
number of people (about 3000) who died on September 11 is dwarfed by the number who die from many other causes that are potential subjects of regulation.259
Hahn’s study itself suggests that “side impact standards for automobiles and cabin fire protection in aircraft,” which are “two-hundred times more cost-effective” than proposals for safeguarding airplanes from terrorism, may well have been favored by CBA under any circumstances.260
For critics, this demonstrates CBA’s inadequacy.261
It seems very likely, however, that most Americans would prefer to have thwarted the 9/11 attacks even if doing so had required public expenditures that could have saved lives more efficiently if directed elsewhere. Such a preference would accord with other findings about the way people perceive risk.262 Rather than focusing only on the likelihood and magnitude of harm, they also consider the nature of the risk.263 “When a hazard is unfamiliar, uncontrollable, involuntary, inequitable, dangerous to future generations, irreversible, man-made, and/or catastrophic, ordinary people are likely to view it as risky,”264 whereas “a hazard that is familiar, controllable, voluntary, equitable, dangerous only to the present generation, reversible, natural, and/or diffusely harmful is unlikely to generate much concern in the populace.”265 These views raise important questions about how to regulate public health and safety. Many regulatory matters such as those involving nuclear power and toxic waste would be resolved one way via CBA and a very different way via the views of the public.266
What WBA adds to the picture is a way of counting the crucial fact that people’s feelings about risk—not just the statistical probability of a risk—affect their well-being.267
Although the fact that a risk is “dreaded” does not make that risk any likelier, “[p]rolonged exposure to dreaded risks frequently leads to deep and widespread anxiety, depression, and distrust.”268 In cataloging these effects, one
259. ACKERMAN &HEINZERLING,supra note 12, at 123–24. 260. Hahn, supra note 258, at 54.
261. ACKERMAN &HEINZERLING,supra note 12, at 123–24, 136–38. 262. Paul Slovic, The Perception of Risk, 236 SCI.280,282(1987).
263. Id.
264. ACKERMAN &HEINZERLING,supra note 12, at 130.
265. Id.
266. Slovic, supra note 262, at 285.
267. Lisa Heinzerling, Environmental Law and the Present Future, 87 GEO.L.J.2025,2036– 37 (1999).
scholar has noted the anger, confusion, and fear produced by the risks,269 as well as their deleterious effects on couples270 and children.271 Another scholar has written at length about the “trauma” imposed by dreaded risks.272 Yet another scholar focuses on the breakdown of trust that those risks tend to cause.273
Anxiety, depression, and distrust can diminish well-being substantially, and these tangible effects on people clearly must be counted by any tool that aims to measure well-being. Indeed, even Hahn’s CBA study that argued against airplane antiterrorism measures acknowledged the possibility that people might “benefit
psychologically” from such measures.274 That study further
acknowledged: “It may be that people are willing to pay large sums to feel safer,” but it concluded that “absent concrete research supporting this assertion, the money would be far better spent” elsewhere.275
In contrast to studies like that one, WBA can be used to forecast the effects of regulation on people’s well-being. By using hedonic data from communities that have been subjected to the relevant risks, WBA captures the harms that CBA has been so extensively criticized for missing. The reason that people’s qualitative judgments of risks matter is that those judgments themselves influence, sometimes profoundly, people’s experience of life. Such influence is the thing that WBA exists to measure.
It is essential to note that WBA does not ignore the actual likelihood and magnitude of harm on which CBA focuses. Actual deaths, of course, eliminate well-being and are thus profoundly weighted in any WBA calculus. This is especially significant because the harshest critics of CBA, in pushing for a more democratic approach to risk assessment, can be insufficiently sensitive to quantitative measures. Hazards that are “familiar,” “equitable,” and
269. MICHAEL EDELSTEIN, CONTAMINATED COMMUNITIES: THE SOCIAL AND
PSYCHOLOGICAL IMPACTS OF RESIDENTIAL TOXIC EXPOSURE 44–46(1988).
270. Id. at 93–95 (noting that, for example, “[s]pouses sometimes held their mates
responsible for getting them into the situation or for their coping strategy,” frequently resulting in substantial “marital strife”).
271. Id. at 98–105.
272. See generally KAI ERIKSON, A NEW SPECIES OF TROUBLE: EXPLORATIONS IN
DISASTER,TRAUMA, AND COMMUNITY 226–42(1994).
273. Paul Slovic, Perceived Risk, Trust, and Democracy, 13 RISK ANALYSIS 675, 677–80 (1993).
274. Hahn, supra note 258, at 54.
“natural”276
still ought to be taken very seriously if they are likely to kill many people. So WBA provides an appropriate mediating measure between the critics’ focus on psychological triggers of risk and the lament of CBA practitioners that the public is simply irrational.
2. Different Types of Death. CBA also chooses not to
differentiate between quick deaths and slow, painful ones,277 and this weakness of CBA reveals one of WBA’s strengths. The reason that people hope to avoid painful deaths is, simply and obviously, that people dislike pain because it decreases their well-being. If we hold constant the time at which a person will die278 and contrast two different sets of “circumstances preceding death”279
—one in which the person is in pain and miserable, and the other in which the person is pain-free and relatively happy—several things become clear: (1) the person is better off in the pain-free scenario, (2) the reason for this is that she feels better in the pain-free scenario, (3) the amount by which she is better off is the amount by which she feels better, multiplied by the amount of time during which she feels better, and (4) the better a tool of analysis takes account of these facts, the better it captures the likely effects of a policy on human well-being. WBA is designed precisely to account for these considerations. CBA ignores them in practice, and even in theory it could address such concerns only via proxies that are less reliable and less direct than those of WBA.
3. How One Person’s Death Affects Another Person’s Welfare.
CBA counts death as a cost to the person who died,280 but not as a cost to others who may be affected by that person’s death. We mimicked that practice in our example of WBA earlier in this Article, but in actual policymaking this is a mistake that should be corrected.
276. ACKERMAN &HEINZERLING,supra note 12, at 130.
277. See id. at 70–71 (“[T]he circumstances preceding death are important: sudden, painless death in pleasant circumstances is different from agonizing, slow deterioration surrounded by medical technology.”).
278. If the time of death would actually differ, such that a slow death would increase the length of life, then of course this should be factored in as well. WBA does factor it in, whereas CBA does not. See infra Part IV.B.
279. ACKERMAN &HEINZERLING,supra note 12, at 71.
280. Or, to use CBA’s preferred terminology, it counts the cost of subjecting the members of a population to an increased risk of death. We believe that this amounts to the same thing.
WBA is well-positioned to do so, because hedonic data already exist about the effect of people’s deaths on those close to them.281 By contrast, CBA would have to add this element by asking people how much money they would be willing to pay to avoid losing a loved one (or to avoid a risk to that person’s life). Such an approach implicates all of the problems with CBA we discuss throughout this Article, such as wealth effects, hypothetical questions, and people’s difficulty in thinking about infinitesimally small numbers, among others. But the largest problem, as may always be the case with CBA, is that it requires people to guess the effect of something on their life in the future. How much welfare do people lose when their loved ones die? Instead of relying on what people predict the effect will be, along with their capacity to convert that effect into dollar figures, it is better to rely on measures of how such deaths actually affect people’s happiness, as measured by their in-the-moment self-reports at various stages of time after the deaths. Hedonic studies measure precisely that.282